Citation: N T v R [2010] NSWDC 348
Court: District Court of New South Wales
Date: 24 November 2010
Judge(s): Tupman DCJ
Background
The appellant was a 13-year-old Aboriginal girl who was on bail with conditions. Police received information that she had breached a bail condition the previous night and were directed to arrest her. Around 5.15 pm the following afternoon, two officers attended her home address, which was known to them, and asked her to step outside.
The arresting officer believed the appellant had committed an offence by breaching her bail condition. No such offence exists under the Bail Act 1978. The officer also did not turn her mind to whether alternatives to immediate warrantless arrest, such as obtaining a warrant from an authorised justice or issuing a summons under s 50 of the Bail Act, were available or more appropriate in the circumstances.
The interaction escalated. The appellant pushed past the officers, the police applied an arm bar takedown to the ground and handcuffed her, and her father carried her across the road to the police vehicle while she kicked and screamed. She was then charged in the Children's Court with resisting an officer in the execution of duty (Crimes Act 1900, s 58) and using offensive language (Summary Offences Act 1988, s 4A). The Children's Court convicted her. She appealed to the District Court, where the central question became whether the evidence supporting those convictions was admissible.
Legal Issues
- Whether the police arrest was effected lawfully under s 50 of the Bail Act 1978.
- Whether the arrest and the manner in which it was carried out amounted to an "impropriety" within the meaning of s 138 of the Evidence Act 1995.
- Whether, if the evidence was improperly obtained, it should nonetheless be admitted in the exercise of the court's discretion under s 138.
- Whether, if the evidence was excluded, the convictions could stand.
Decision
Tupman DCJ found that while the police did possess the power to arrest without warrant for an alleged breach of bail under s 50 of the Bail Act, the arresting officer did not exercise that power on a proper basis. She believed she was arresting the appellant for the commission of an offence called "breaching bail," which does not exist. The court noted this misconception has persisted in NSW for at least 25 to 30 years.
Beyond the mistaken legal foundation, the officer never turned her mind to the alternatives expressly available under s 50: approaching an authorised justice for a warrant, or serving a summons. These alternatives were not considered by the officer or, on the evidence, by those who instructed her. The court held that the same considerations applicable to deciding whether to arrest or proceed by summons for an ordinary offence should equally inform the choice of how to deal with an alleged bail breach.
The court found the circumstances made the failure to consider alternatives especially troubling. The alleged breach was apparently minor, the appellant's whereabouts were known, she was 13 years old, and the arrest occurred on a Sunday afternoon, meaning she could have been held in custody overnight with no court available until Monday. Tupman DCJ concluded the conduct, though not unlawful and not dishonest or intentional in its impropriety, nonetheless fell below the minimum standards reasonably expected of those entrusted with law enforcement powers.
Turning to the s 138 discretion, the court acknowledged the evidence's probative value was high, as it was the only evidence capable of proving the charges. However, the offences themselves were not particularly serious, they arose directly from the impropriety, and the impropriety itself was assessed as relatively serious in the overall circumstances. On balance, the court excluded the evidence. With no admissible evidence remaining, the convictions could not stand.
Orders Made
- The conviction appeal is upheld.
- The convictions and sentences are quashed.
Key Takeaways
- Breaching a bail condition is not a criminal offence under the Bail Act 1978, despite court attendance notices sometimes being issued on that basis. Police have a power to arrest without warrant for an alleged bail breach, but that power is distinct from any power to arrest for the commission of an offence.
- Under s 50 of the Bail Act 1978, police have alternatives to immediate warrantless arrest when dealing with an alleged breach of bail, including approaching an authorised justice for a warrant or for the issue of a summons. Failure to consider those alternatives can constitute an impropriety for the purposes of s 138 of the Evidence Act 1995.
- Conduct need not be unlawful or dishonest to constitute an "impropriety." The test applied by the District Court was whether the behaviour fell below the minimum standards a society such as ours should expect of those entrusted with powers of law enforcement.
- In performing the s 138 balancing exercise, the court weighed the high probative value of the evidence against the seriousness of the impropriety and the fact that the charges arose directly from it. Where the impropriety itself generates the conduct charged, that connection weighs in favour of exclusion.
- Contextual factors, including the age of the person arrested, the apparent minor nature of the breach, the fact that the person's location was already known, and the foreseeable consequences of a Sunday afternoon arrest (overnight custody without access to a court), all informed the assessment of whether proceeding to immediate warrantless arrest was appropriate.
Legislation and Cases Referenced
Legislation:
- Bail Act 1978 (NSW), s 50
- Evidence Act 1995 (NSW), s 138
- Crimes Act 1900 (NSW), s 58
- Summary Offences Act 1988 (NSW), s 4A
Cases:
- DPP v Carr [2002] NSWCCA 194
- Fleet v District Court and Ors [1999] NSWCA 363